Republic v Counselors & Psychologists Board & another; Ndinda & another (Exparte Applicants) (Judicial Review Application E002 of 2023) [2024] KEELRC 2689 (KLR)

5. This court be pleased to strike out and/or expunge all the Replying Afidavits filed by the 2nd Respondent. 6. Costs of this application be provided for. 2. The application is supported by the Replying Afidavit of the first ex parte applicant because the second Respondent filed two Replying Afidavits on 5 March 2024 and subsequently on 9 July 2024. Both afidavits do not stand the test of law and process. They are fatally defective for want of form and compliance with the law. 3. In the Supporting Afidavit, the 1st ex parte applicant aver that the Replying Afidavit of 5 March 2024 filed by the 2nd Respondent did not honestly state the date the oath or Afidavit was taken or made. The Afidavit filed on 9 July 2023 was filed without leave or directions from the court, circumventing procedural rules of practice. All these afidavits were commissioned by a person with no interest in the matter, contrary to clear provisions of the law. Some annexures supporting the Replying Afidavit appear to have fictitious dates and annexures. 4. The ex parte applicantalso averred that the issues raised in both Replying Afidavits are not mere technicalities but relate to non-compliance with the law and are, therefore, incurably defective. The afidavits be struck out, and the application be allowed with costs. 5. In reply, the second Respondent filed the Replying Afidavit of Anne Kanake, the person holding the second Respondent's ofice, averring that the Replying Afidavits dated 5 March and 9 July 2024 are the same. The applicant raised an issue of the date of these afidavits. The issues raised are mere technicalities, which were dealt with on 17 June 2024 when the matter was in court. 6. Anne Kanake averred that the Replying Afidavits alleged that they were commissioned by someone interested in the matter. These allegations are grievous, and the applicant has not shown how the said person has an interest in the matter. The alleged defects in the afidavits are not demonstrated, and what is raised are mere technicalities that can be cured under Article 159 of the Constitution. 7. The 1st respondent opted not to file any responses. 8. The parties attended and made oral submissions in court. These are analysed, and the issue for determination is whether the Replying Afidavits filed by the 2nd Respondent on 5 March 2024 and subsequently on 9 July 2024 are defective and whether they should be struck out. 9. First, a background to this matter is imperative. 10. The ex parte applicants opted to move the court through judicial review proceedings. Directions for the hearing of the main application were issued without compliance. The ex parte applicants opted to file an application dated 15 November 2023, challenging the records and afidavits filed by the respondents. 11. This application was heard, and the ruling was delivered on 5 February 2024. It was dismissed. The ex parte applicants were directed to proceed and prosecute the main application. There was no attendance, leading to the court issuing a notice to show cause why the application should not be dismissed. Instead, the ex parte applicant filed the instant application challenging the Replying Afidavits filed by the 2nd Respondent. 12. This background shall sufice. 13. The ex parte applicant’s case is that the Replying Afidavits dated 5 March 2024 and subsequently one dated 9 July 2024 are defective for want of form because she was first served with the Replying Afidavit https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2689/eng@2024-10-31 2

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of Beatrice Mathenge without stating the date the oath was taken. The attachments to the afidavits are at variance and speak to difierent dates post the afidavit date; hence, they are fictitious and should be expunged. 14. Other grounds are that these Replying Afidavits are commissioned by the same advocate who drew the same contrary to the Oaths and Statutory Declarations Act. The Afidavit by Beatrice Mathenge is drawn by the ofice of the Attorney General and commissioned by a State Counsel. 15. The afidavits are undated, and subsequent afidavits are filed without leave of the court, contrary to the Civil Procedure Rules. 16. On their part, the 2nd Respondent admitted that the Replying Afidavit had errors, but these are mere technicalities that can be cured under Article 159 of the Constitution. However, an Afidavit is regulated under the Oaths and Statutory Declarations Act and must adhere to the requirements of the law. The provisions of Article 159 of the Constitution are not a panacea to every malady that faces the people of Kenya as held in Said Sweilem Gheithan Saanum v Commissioner Of Lands (Being Sued Through The Attorney General), Municipal Council of Mombasa, Norman Taherali Dawoodbhai, Hassan Taherali Dawoodbhai, Ali Ramandhan Mwatsau & Mohamed Naman Mohamed [2015] KECA 284 (KLR). 17. Where a procedure is regulated in law, such is not ousted by the provisions of Article 159 of the Constitution. Under the Oaths and Statutory Declarations Act, a jurant should attend before a Commissioner for Oaths who should state the date and place of taking the oath. 18. It is trite that the deponent cannot commission the Afidavit. In this case, the 2nd respondent is the ofice appointed as State Counsel serving at the Registrar of Trade Union. Such ofice cannot be divested outside the Attorney General. An afidavit commissioned by the same ofice is invalid under the Oaths and Statutory Declarations Act. 19. However, this lapse in the Replying Afidavit dated 5 March 2024 is addressed, and the 2ndrespondent filed the Replying Afidavit dated 9 July 2024. 20. Under Rule 14 of the Employment and Labour Relations Court (Procedure) Rules, no leave is necessary to be sought in filing documents before pleadings close. The technicalities applied relate to matters filed under the provisions of the Civil Procedure Rules while applied in a difierent context. 21. The background outlined above comes alive in that the ex parte applicants have failed to expedite this matter with numerous applications and adjournments. Cumulatively, this is a matter for the ex parte applicants. Continued delay only ends up in unnecessary costs. 22. For completeness, the Replying Afidavit dated 5 March 2024 is hereby expunged. The 2nd respondent is allowed the next 14 days to file a comprehensive response, attaching all the necessary documents. Equally, the ex parte applicants are to file all the necessary records within the next 21 days to allow pleadings to close in the next 28 days. Costs to abide by the outcome of the application. 23. The notice to show cause why the application should not be dismissed is placed in abeyance to allow parties to comply as above. Orders accordingly. DELIVERED IN OPEN COURT AT MOMBASA ON THIS 31ST DAY OF OCTOBER 2024. M. MBARŨ JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2689/eng@2024-10-31 3

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